Madras High Court
C.Joseph Vijay vs The State Of Tamil Nadu on 25 January, 2022
W.A.No.1810/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.01.2022
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.A.No.1810 of 2021
and C.M.P.No.11316 of 2021
C.Joseph Vijay .. Appellant/Petitioner
Vs.
1. The State of Tamil Nadu
Rep. by its Secretary,
Home Department (Transport),
Fort St. George, Chennai-600 009.
2. The Assistant Commissioner (CT),
Assessment Circle, Chennai.
3. The Regional Transport Officer,
Chennai South, Chennai.
4. The Motor Vehicle Inspector,
Chennai South, Chennai. .. Respondents/Respondents
***
Prayer : Writ Appeal filed under Clause 15 of Letters Patent against the
order dated 08.07.2021 passed in W.P.No.18385 of 2012.
***
For Appellant : Mr.Vijay Narayan, Senior Counsel
for Mr.S.Kumaresan
For Respondent : Mr.V.Nanmaran
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JUDGEMENT
The charm and dignity of a judge get enhanced by sobriety
restrain grace and concern for the cause of justice - EGO (Edging God
Out).
"Real strength of the judiciary lies in public faith and not in its
contempt jurisdiction to punish a person."
2. The above appeal is filed by the appellant to expunge certain
offending / objectionable observations made in the order of the Writ
Court made in W.P.No.18385 of 2012 on 08.07.2021.
3. The appellant, who had purchased an imported car, was
insisted by the transport authorities to pay the entry tax before
registering the vehicle. Hence, a Writ of Mandamus was filed by him.
While dismissing the same, learned Single Judge had made certain
observations / remarks, which according to the appellant, are
disparaging and undeserving. Feeling aggrieved against the adverse
remarks made by the Writ Court and for the expunction of the same, the
above appeal is filed.
4. Mr.Vijay Narayan, learned Senior Counsel appearing for the
appellant, would submit that :
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(a) the adverse remarks are not at all necessary for just and
proper disposal of the writ petition and such undeserving remarks were
made in breach of principles of natural justice. The comments made by
the learned Single Judge are sought to be expunged, in particular those
made in paragraphs 3, 4, 7, 8, 11 and 12 of the impugned order.
(b) the castigating remarks against the appellant, without
affording an opportunity of hearing affecting his reputation, integrity and
conduct, are wholly unsustainable and bad in law.
(c) such adverse remarks are absolutely unnecessary for proper
adjudication of the writ petition and it would affect the appellants future
career.
(d) the unwarranted and uncharitable remarks imputing motives to
the appellant as litigant really hurts.
5. To be noted here is that the appellant has paid, the entry tax
as demanded.
6. Before delving into the impugned order of the learned Single
Judge, it is appropriate to collate certain judgments with regard to the
demand and collection of entry tax and the constitutionality of the same
vis-a-vis Part-XIII of the Constitution. The primordial challenge in this
regard before various High Courts and the Hon'ble Supreme Court
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revolved around was, whether the "Entry Tax" was compensatory in
nature and thus, outside the purview of Part-XIII of the Constitution.
7. Though the above question stands finally resolved by the
Constitutional Bench of 9 Judges by the Hon'ble Supreme Court in the
case of Jindas Stainless Limited and Another Vs. State of Haryana
and others reported in (2017) 12 SCC 1, it may be very relevant to
set out the history of the litigation leading to the Constitutional Bench
decision in the aforesaid case.
7.1. A Writ petition was filed before the High Court of Punjab and
Harayana assailing the constitutional validity of the Harayana Local Area
Development Tax Act. A Division Bench, after relying upon the decision
of the Supreme Court in Atiabari Tea Co. Ltd., Vs. State of Assam
and Others, AIR 1961 SC 232, has held that the levy was
compensatory in character hence, outside the purivew of Article 301.
7.2. The correctness of the said order was assailed before the
Supreme Court, wherein, a two-Judge Bench noticed an apparent
conflict between the constitutional bench Judgments reported in
Atiabari case and Automobile Transport (Rajasthan) Ltd., V. State
of Rajasthan, AIR 1962 SC 1406, on the one hand and Bhagatram
Rajeevkumar V. CST, 1995 Supp (1) SCC 673 and State of Bihar
Vs Bihar Chamber of Commerce, (1996) 9 SCC 136 on the other.
The 2-Judge Bench of the Supreme Court referred the matter to a
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Constitutional Bench stating that the interpretation of Article 301 vis-a-
vis compensatory tax should be authoritatively laid down with certitude
under Article 145(3) of the constitution.
7.3. Pursuant thereto, the matters were placed before the
Constitutional Bench of the Hon'ble Supreme Court in Jindal Stainless
Ltd., Vs. State of Haryana reported in (2006) 7 SCC 241, which
resolved the conflict noticed in the reference order, holding that the
working test propounded by seven Judges in Automobile Transport
case authoritatively was incompatible with the test of some connection
enunciated by a Bench of 3 Judges in Bhagatram Rajeevkumar and
Bihar Chamber of Commerce.
7.4. The matters were thereafter listed before Two Judge Bench
for hearing the appeals, in the light of the above Bench Judgment
pronounced by the Constitutional Bench. The Two-Judge Bench of the
Supreme Court after finding that in the absence of the relevant data
before the High Court, the issue whether the levy were compensatory or
otherwise could not have been considered and referred the matter back
to the High Court to decide the said aspect.
7.5 The matters were taken by the High Court after remitted by
the Supreme Court and a number of High Courts, including the Madras
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High Court, have struck down the levy imposed by the respective States
on the ground that they were discriminatory in nature and thus violative
of Article 304(a) of the Constitution.
7.6. The Judgments and orders of various high Courts passed
pursuant to the remand made by the Hon'ble Supreme Court were came
to be challenged by the States concerned before the Supreme Court.
Those appeals initially came up before a Two-Judge Bench of the
Supreme Court, which referred the same yet again to a Constitutional
Bench for an authoritative pronouncement, whereby, as many as 10
questions were formulated in the reference order.
7.7. The two-Judge Bench was of the view that the Constitutional
Bench Judgment in Jindal stainless Ltd. Vs. State of Haryana,
(2006) 7 SCC 241, had not dealt with certain important constitutional
issues. Moreso as the Division Bench was of the view that a conceptually
and contextually different approach may be required vis-a-vis
Transport case on one hand and cases of Entry tax on goods on the
other, the matter were placed once again before the Bench of Five
Judges of the Hon'ble Supreme Court in Jindial stainless Ltd. Vs.
State of Haryana, (2010) 4 SCC 595, wherein, after briefly referring
to the decision of Atiabari, Automobile Transport cases and Keshav
mills Co. Ltd., the same was referred to a Larger Bench for re-
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consideration of the Judgment of the Supreme Court in Atiabari and
Automobile Transport cases.
7.8. Finally, the matters were listed before the Constitutional
Bench of Nine Judges. The scope of Part-XIII vis-a-vis the
power/competence to tax was finally resolved and inter alia, the Nine-
Judge Bench held as follows :
"1159. By majority the Court answers the reference in the
following terms:
1159.1. Taxes simpliciter are not within the contemplation of
part XVIII of the constitution of India. The word “free”used in Article
301 does not mean “ free from taxation”
1159.2 Only such taxes as are discriminatory in nature are
prohibited by Article 304(1). It follows that levy of an non-
discriminatory tax would not constitute an ifnraction of Article 301.
1159.3 Clauses (a) and (b) of Article 304 have to be read
disjunctively.
1159.4. A levy that violates Article 304(a cannot be saved even
if the procedure Article 304(b) of the provisio thereunder is satisfied.
1159.5 The Compensatory tax theory evolved in Automobile
Transport case and subsequently modified in Jindal case has no
juristic basis and is therefore rejected.
1159.6 The decisions of this Court in Atiabari, Automobile
Transport and Jindal cases and all other judgments that follow these
pronouncements are to the extent of such reliance overruled.
1159.7 A tax on entry of goods into a local area for use, sale or
consumption therein is permissible although similar goods are not
produced within the taxing state.
1159.8 Article 304(a) frown upon discrimination (of a
hostile nature in the protectionist sence) and not on mere
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differention. Therefore, incentives, set-offs, etc granted to a specified
class of dealers for a limited period of time ina non-hostile fashion
with a view to developing economically backward ares would not
violate Article 304(a). The question whether the levies in the presnt
case indeed satisfy this test is left to be determined by the regular
Benches hearing the matters.
1160. States are well within their right to design their fiscal
legislations to ensure that the tax burder on goods imported from
states and goods produced within the state fall equally. Such
measures if taken would not contravene Article 304(a) of the
Constitution. The question whether the levies in the present case
indeed satisfy this test is left to be determined by the regular Benches
hearing the matters."
7.9. Importantly the question as to whether the Entire State can
be notified as a local area and whether entry tax can be levied on the
goods entering into the land mass of India from another country was left
open to be determined in an appropriate proceedings.
7.10. Thereafter the Hon'ble Supreme Court dealt with a batch of
appeals raising the above question viz., competence of the States to
levy Entry tax in vehicles/goods imported from outside India by various
States including States of Orissa, Bihar and Kerala.
8. The Two Judge Bench of the Supreme Court proceeded to
hold that it is permissible for the State to levy Entry Tax even on
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imported goods/Vehicles and reversed the order of the Kerala High Court
which held that levy of Entry tax on imported goods/vehicles imported
from outside the country is impermissible. The history of litigation has
been set out in great detail only to show that there has been grave
uncertainty not only with the reference to parameter/test to be applied
for determining the question of validity of levy of Entry Tax, but also the
question whether Entry Tax can be levied on imported goods stood
resolved only by the decision of the Supreme Court in State of Kerala
and Others Vs. Fr.William Fernandez Etc. reported in 2017 SCC
OnLine SC 1791, which was delivered on 09.10.2017. Thereafter,
following the decision of the Supreme Court in Fr. William Fernandez
case, a Divison Bench of this Court devliered a judgment on
29.01.2019 in a batch of writ petitions in the case of
V.Krishnamurthy Vs. State of Tamil Nadu reported in (2019) 69
GSTR 326.
9. The order of the learned single Judge, wherein, certain
disparaging remarks were made, appears to be wholly unwarranted, as
there was uncertainty as to the state of law relating to Entry Tax and
divergent views were expressed not only by the High Courts, but by the
Supreme Court as well. Thus, to impute motives to a litigant or
castigating him for taking a particular legal position or exercising his
constitutional right under Article 226 is unwarranted.
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10. Now the question that arises for consideration is with regard
to inherent power and jurisdiction of this Court to expunge the alleged
adverse remarks made by the Single Judge. In this regard, it would be
appropriate to refer to the relevant decisions.
10.1. In Testa Setalvad and another Vs State of Gujarat and
others reported in (2004) 10 SCC 88, it has been held by the Hon'ble
Supreme Court that :
“13. We also extract below the observation of this Court in
Braj Kishore Thakur Vs Union of India:
"2. Judicial restraint is a virtue. A virtue which shall
be concomitant of every judicial disposition. It is an attribute
of a judge which he is obliged to keep refurbished from time
to time, particularly while dealing with matters before him
whether in exercise of appellate or revisional or other
supervisory jurisdiction. Higher Courts must remind
themselves constantly that higher tiers are provided in the
judicial hierarchy to set right errors which could possbily
have crept in the findings or orders of Courts at the lower
tiers. Such powers are certainly not for belching diatribe at
judicial personages in lower cadre. It is well to rememebr
the words of a jurist that “a judge who has not committed
any error is yet to be born“. ......
11. No greater damage can be caused to the
administration of justice and to the confidence of people in
judicial institutions when judges of higher courts publicly
express lack of faith in the subordinate judges. It has been
said, time and again, that respect for judiciary is not in
hands by using intemperate language and by casting
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aspersions against lower judiciary. It is well to remember
that a judicial officer against whom aspersions are made in
the judgment could not appear before the higher Court to
defend his order. Judges of higher Courts must, therefore,
exercise greater judicial restraint and adopt grater care
when they are tempted to employ strong terms against the
lower judiciary.”
10.2. In Dr.Dilip Kumar Deka and another Vs State of Assan
and another reported in (1996) 6 SCC 234, it has been held as
follows:
“6. The tests to be applied while dealing with the question of
expunction of disparaging remarks against a person or authorities
whose conduct come in for consideration before a Court of law in
cases to be decided by it were succinctly laid down by this Court in
State of U.P. Vs. Mohd. Naim, AIR 1964 SC 703. Those tests are:
(a) Whether the party whose conduct is in question is before
the Court or has an opportunity of explaining or defending himself;
(b) Whether there is evidence on record bearing on that
conduct justifying the remarks ; and
(c) Whether it is necessary for the decision of the case, as an
integral part thereof, to animadvert on that conduct.
The above tests have been quoted with approval and applied by
this Court in its subsequent judgments in Jage Ram Vs. Hans Raj
Midha, (1972) 1 SCC 181, R.K. Lakshmanan Vs. A.K.Srinivasan
(1975) 2 SCC 466 and Niranjan Patnaik Vs. Sashibhusan Kar,
(1986) 2 SCC 569.
7. We are surprised to find that in spite of the above catena of
decisions of this Court, the learned Judge did not, before making the
remarks, give any opportunity to the appellants, who were admittedly
not parties to the revision petition, to defend themselves. It cannot be
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gainsaid that the nature of remarks the learned Judge has made, has
cast a serious aspersion on the appellants affecting their character
and reputation and may, ultimately affect their career also.
Condemnation of the appellants without giving them an opportunity of
being heard was a complete negation of the fundamental principle of
natural justice. ...........
11. Now that we have found, applying the first two tests of
Mohd. Naim case that the impugned remarks cannot be justified, the
question whether it satisfies the third test also need not be gond into.
However, we will be failing in our duty if we do not advert to the
phraseology the learned Judge has used while condemning the onduct
of the appellants. In Mohd. Naim Case this Court while laying down
the three tests (quoted earlier) further observed :
“It has also been recognised that judicial
pronouncement must be judicial in nature and should not
normally depart from sobriety, moderation and reserve.”
While quoting with approval the above above observations in Niranjan
case this Court further observed :
“We need only remind that the higher the forum and
the greater the powers, the greater the need for restraint and
the more mellowed the reproach should be.”
12. Recently, in Abani Kanti Ray Vs. State of Orissa, 1995
Supp. (4) SCC 169, this Court had made the following observations
after referring to the earlier cases of this Court including R.K.
Lakshmanan and Niranjan:
“What we have said above is nothing new and is only a
reiteration of the established norms of judicial propreity and
restraint expected from everyone discharging judicial functions.
Use of intemperate language or making disparaging remarks
against anyone unless that be the required for deciding the
case, is inconsistent with judicial behaviour. Written Words in
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judicial orders form permanent record which make it even more
necessary to practise self-restraint in exercise of judicial power
while making written orders. It is helpful to recall this facet to
remind ourselves and avoid pitfalls arising even from
provocation at times.”
11. If one bears in mind the above background, it is difficult to
suggest that the petitioner had acted with malafide and with deliberate
intention and thus, the observation made by the learned single Judge,
apart from being unwarranted, are irrelevant to decide the issue. The
order of the writ Court also overlooks the fact that the view/stand taken
by the petitioner, insofar as the leviability of entry tax on imported
vehicles is the view taken by the Division Bench of Kerala High Court
and also the Judgment of the Madras High Court and the matter was
finally resolved by a Division Bench of the Hon'ble Supreme Court, after
the Constitutional Bench of Nine Judges pronounced on the scope of Part
XIII of the Constitution. The above sequence of litigation will clearly
demonstrate that the appellant cannot be imputed with motive
whatsoever and therefore, the disparaging remarks are clearly
unwarranted.
12. For the foregoing reasons, the Writ Appeal is allowed and the
observations made by the learned Single Judge against the appellant in
paragraphs 3, 4, 7, 8, 11 and 12 of the impugned order stand expunged.
No costs. Consequently, connected miscellaneous petition is closed.
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(P.S.N., J.) (M.S.Q., J.)
25.01.2022
Index : Yes / No
Internet: Yes
gg
To
1. The Secretary,
Home Department (Transport),
Government of Tamil Nadu,
Fort St. George, Chennai-600 009.
2. The Assistant Commissioner (CT),
Assessment Circle, Chennai.
3. The Regional Transport Officer,
Chennai South, Chennai.
4. The Motor Vehicle Inspector,
Chennai South, Chennai.
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PUSHPA SATHYANARAYANA, J.
AND
MOHAMMED SHAFFIQ, J.
gg
W.A.No.1810 of 2021
& C.M.P.No.11316 of 2021
25.01.2022
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